Sunday, February 22, 2004

Japanese Law Schools

I just ran across this post on Japanese law schools over at Waddling Thunder, linking to a page explaining the changes courtesy of my old school. Waddling's post uses this as an example of almost reflexive anti-Americanism among some groups. However, my understanding is that post-graduate school education in law is exclusively a North American (read U.S. plus our Canadian lackeys) phenomenon, so I'm going to have to disagree with him in this regard. Second point about his observations, my understanding is that there's been a gradual increase in the number of people who pass the bar, up from 500 to 1200 or 1300 now, with an expansion to 3000 once the new law schools graduate their first classes (Feb/Mar '06 for the first 2 year classes, '07 for the 3 year students), and while there may be many people who spend 7 (or more years) taking the bar exam, there are also first time passers (these people tend to end up in the white shoe law frims).

Two issues that Waddling didn't raise that I find worth noting. First, what happens to those graduates of the undergrad law faculty programs who don't pass the bar or just don't take the bar? Well, the Japan Federation of Bar Associations doesn't have the same type of control the ABA does here, so many things that would be categorizing in the U.S. as practicing law just aren't in Japan. Consequently a company like Toyota has a legal department filled with a number of bright, qualified people negotiating contracts, doing deals, etc., none of whom are lawyers, and probably relatively few of whom bothered to take the bar exam. By contrast, if you looked at GM's legal department my supposition would be that you'd find it to be filled with lawyers. Naturally, of course, some law graduates won't end up doing legal work at all, which isn't a problem.

Second issue, how will this system change with the introduction of the new post-graduate law schools? The really big issue here (ignoring how you go about creating 60 brand new law schools on 3 years' notice) is that the new law schools will have a combined class size of roughly 6,000. 3,000 people a year will pass the bar. That leaves 3,000 students a year who will not pass the bar. Undoubtedly, some of those people will take the bar a second and third time and pass it then, but that doesn't solve the problem, since their passing will mean new graduates failed (fixed number=zero-sum game). Given this state of affairs, it's pretty easy to see that probably the most important way to distinguish between law schools will be the bar passage rate. This will encourage law schools to be simply bar exam preparation schools. Eventually, it's not difficult to foresee a situation fairly similar to the one that exists right now, except with a higher bar passage rate, with one important exception.

Companies like Toyota will still not require lawyers for their legal department. Undergraduate law faculties will continue to exist. Not all undergraduate law students will go to law school (one of the underlying effects of the introduction of law schools will be to increase the number of non-law faculty students who attend law school and presumably pass the bar). Toyota will then have a choice: (1) hire bright, well-qualified people right out of undergraduate law faculties or (2) hire bright people who spent 2 or 3 years in law school and then either took, and failed to pass, the bar, or didn't take the bar examination, despite spending the last 2 or 3 years in what is essentially bar exam prep school.

This touches into a recurring theme in education, namely the problem of teaching to the test. I don't claim to have any expertise in this area, but let me note that my intuition has been that teaching to the test is fine if the test accurately encapsulates what you're trying to get out of the program. This is admitted a somewhat crude heuristic, but let's say that Toyota is willing to hire category (2) people over category (1) people, despite probable higher salary expectations if it believes (2) people are commensurately better qualified. Unfortunately, the Japanese bar exam is best described as at least a little unusual, not at all like the U.S. state bar exams, and several years of preparation for it would likely not leave category (2) people any better qualified than category (1) people, let alone commensurately so to expectations. This would leave category (2) people who don't pass the bar no better off than, and likely worse off than people who currently do not pass the bar.

In short, my analysis based on the facts as I understand them indicates that the introduction of law graduate schools to Japan will probably not have the salutary effect believed by its proponents, but will leave the situation no better off, and possibly worse off, than maintaining the current system but raising the number of bar passage rates.

Topics that I haven't dealt with include (1) the salutary effect of having non-law faculty students in law school and becoming lawyers, (2) rational actor law graduate school applicants (i) only applying to the top law schools, (ii) electing to attend law school or not, and (iii) Lake Wobegon-style biases that offset rational actors, (3) the implication of the 2 year (for law faculty students) as opposed to 3 year (for other students) law school, (4) the Japanese company practice of rotation that produces generalists rather than specialists and its influence on hiring, and (5) the future of bar exam prep schools. I may have time to deal with at least one of these issues in the coming days, but I make no promises.